In Re the Will of McSwain v. McSwain
| Docket Number: | 2005-CA-00943-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 12-12-2006 Opinion Author: Southwick, J. Holding: REVERSED AND REMANDED |
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| Additional Case Information: |
Topic: Wills & estates - Gift to class of individuals - Power of appointment Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Chandler, Griffis, Barnes, Ishee and Roberts, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - WILLS, TRUSTS AND ESTATES |
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| Trial Court: |
Date of Trial Judgment: 04-12-2005 Appealed from: FORREST COUNTY CHANCERY COURT Judge: JAMES H. C. THOMAS, JR. Disposition: PROVISION OF WILL VOIDED FOR UNCERTAINTY Case Number: 2004-0126-PR-TH |
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| Party Name: | Attorney Name: | |||
| Appellant: | In the Matter of the Last Will and Testament of Eunice McSwain, Deceased: Martha Shows |
WILLIAM L. DUCKER |
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| Appellee: | Katheryn Jane McSwain Polk, Elizabeth Ruth McSwain Hughes, and Eunice Charlene McSwain | JOHN BRIAN JONES, ROBERT T. JACKSON |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wills & estates - Gift to class of individuals - Power of appointment |
| Summary of the Facts: | The will of Eunice McSwain distributed real and personal property to various family members including Katheryn Jane McSwain Polk, Elizabeth Ruth McSwain Hughes, and Eunice Charlene McSwain. Her will also directed the judge to make a fair contribution of cash assets that may be remaining from her estate to her caretakers, particularly Martha Shows, a caretaker who worked for McSwain from October 1998 until McSwain’s death in 2004. The executor, Davis Fortenberry, filed a first annual and final account for the estate. The other beneficiaries under the will argued that the article concerning the caretakers was void for uncertainty and that Shows and the other caregivers should receive nothing. The chancellor found this provision in McSwain’s will to be void for lack of certainty. Shows appeals. |
| Summary of Opinion Analysis: | The operative language in the will was that “I hereby give, devise, bequeath and direct that the Judge of competent jurisdiction over the administration of my Estate make a fair contribution from the cash assets that may be remaining from my Estate to the said caretakers then providing said services to me, and, in particular, Martha Shows . . . .” The chancellor found the language not only to be ambiguous as to the amount of the bequest to caregivers, but to have used language that would prevent enlightenment from other sources. The power granted here, which was the authority to make a gift to the class of individuals who cared for the testator, has been enforced in other jurisdictions. Even though the provision in the last will and testament provides no standard by which to determine the amount of money to be given the caretakers, such unfettered discretion is permissible in a power of appointment. The testator directs that “a fair contribution” be given. That direction is for the donee to distribute a portion of the residual funds of the estate at his complete discretion. That is permissible. When a will provides for an agent who will exercise the unlimited discretion, there is no fatal uncertainty. However, a testator may not direct a chancellor to make a totally arbitrary decision. Courts by the nature of their functions are not to be arbitrary even when parties request that they be. Because the language in McSwain’s will provides for a totally arbitrary decision, it cannot be assigned to a judge. The right to assign a mandatory power has long been accepted in Mississippi, but the gift fails if the power is not exercised by someone. The overarching rule is that the intention of a testator is to be carried out if it is possible to do so. The chancellor never on the record considered the will to create a power of appointment. The case is reversed and remanded for additional findings on why the chancellor was chosen to exercise this authority. The testator’s friend and attorney testified that McSwain decided that it was not desirable to make specific monetary bequests to these individuals because of the uncertainties about her diminishing assets. An alternative was to allow someone at the time of probate to make the decisions in light of the funds available at the time that the decision needed to be made. Based on the evidence now in the record, it would appear that McSwain’s primary desire was for an impartial decision to be made. If on remand, parol evidence indicates that the testator did repose special and nontransferable trust in the office of chancellor to perform that allocation, the power cannot be assigned. If, however, the language in the will should not be seen in that light, then the chancellor may delegate it to an appropriate person. |
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